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State law defines a disaster as an “occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, extreme heat, other public calamity requiring emergency action, or energy emergency [a temporary statewide, regional, or local shortage of petroleum, natural gas, or liquid fuel energy supplies that makes emergency measures necessary to reduce demand or allocate supply].” Tex. Government Code §§418.004(1) and (3).
Each city is required to maintain its own emergency management agency or participate in a local interjurisdictional emergency management agency. See 37 TAC §7.1. The mayor is required to notify the Texas Division of Emergency Management (TDEM) of the manner in which the city is providing an emergency management program and the person designated to head that program. Id. at §7.3.
A city must prepare, keep current, and distributed to appropriate officials a local emergency management plan or an interjurisdictional emergency management plan that is developed in conjunction with another city or county. Id. at §7.12. The purpose of an emergency management plan is to provide for disaster mitigation, preparedness, response and recovery. See Tex. Government Code §418.106(a). Each emergency management plan must be signed by the mayor, and must include, at a minimum: (1) wage, price, and rent controls and other economic stabilization methods; (2) curfews and other movement restrictions; (3) limitations on utility use in areas affected by a disaster; and (4) rules governing entrance to and exit from the affected area, and other security measures. Id. at §418.106(b); 37 TAC §7.12. The mayor, as the emergency management director of the city, may designate a person to serve as the emergency management coordinator. See Tex. Government Code §418.1015. In many cities, the emergency management coordinator is responsible for developing the emergency management plan and coordinating emergency management training. The Governor’s Texas Division of Emergency Management (TDEM) provides plan documentation templates and guidelines for each plan and annex at the Texas Department of Public Safety's Plans Units website. The plan, and any changes, must also be sent to the Governor’s Texas Division of Emergency Management (TDEM). See 37 TAC §7.12. Each plan must be reviewed annually and updated at least once every five years. See 37 TAC §7.12. For more information on emergency management, city officials may review the TDEM’s Texas Emergency Management Executive Guide (PDF).
In addition, as a condition to receiving federal funds, grants, training, and reimbursement of disaster recovery costs, a city must adopt and implement the National Incident Management System (NIMS) as its incident management system. See id. at §7.13. NIMS is an incident management system that enables organization across the country to work together during incidents of all kinds and sizes.
An appointed public officer of a city who has management or supervisory responsibility and: (1) whose position description, job duties, or assignment includes emergency management responsibilities or (2) who plays a role in emergency preparedness, response, or recovery is required to take a three-hour training on emergency management. See Tex. Government Code §§418.005(a) and (b). The League has interpreted this provision to mean that police chiefs and marshals, as well as a fire chief whose office is created by a home rule charter, should take the training. Other fire chiefs may also wish to take the training out of abundance of caution or after consultation with the city attorney. Any other city officer should take the training if his or her position is created by a home rule charter and has specific emergency management duties as part of the job description. The training must be completed before the 180th day after the public officer takes the oath of office, if required, or when the person assumes his or her responsibilities as a public officer. See id. at §418.005(b).The mayor or the person serving as the emergency management coordinator is also required to complete disaster management training. Id. §§418.101(b) and 418.1015(c).
Additionally, city personnel with a direct role in emergency preparedness, incident management or response are required to complete certain NIMS training depending on their incident command system role. 37 TAC §7.12.
The Governor’s Division of Emergency Management provides emergency management training. Regional liaison officers are also available to assist city officials with their training and other emergency management needs. Currently, the Division of Emergency Management provides these classes at no charge and will pay for a city official’s travel expenses to attend one of its classes. A public officer who completes the training shall be provided with a certificate of course completion. See Tex. Government Code §418.005(e). Such certificate shall be maintained and made available for public inspection. Id.
Training on NIMS is also offered by the TDEM and may be taken in-person or online. A listing of NIMS classes can be found at the Texas Department of Public Safety's NIMS Training page.
An emergency management plan is confidential if it contains sensitive information relating to critical infrastructure or facilities and the safety or security of such infrastructures or facilities could be jeopardized by disclosure of the emergency management plan. See Tex. Government Code §418.106(e). Additionally, the following information is deemed confidential:
(a) Any information maintained by the city for purposes of emergency management or disaster planning that relates to physically or mentally disabled individuals or individuals with special needs is also confidential. Id. at §418.175.
(c) Information that is collected, assembled or maintained by or for a city for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity and: (1) relates to the staffing requirement of an emergency response provider, including a law enforcement agency, a fire-fighting agency, or an emergency services agency; relates to a tactical plan of the provider; or (3) consists of a list or compilation of pager or telephone numbers, including mobile and cellular telephone numbers, of the provider. Id. at §418.176.
(d) Information collected, assembled or maintained by or for a city for the purpose of prevention, detecting or investing an act of terrorism or related criminal activity and relates to an assessment of the risk or vulnerability of persons or property, including critical infrastructure, to an act of terrorism or related criminal activity. Id. at 418.177.
(e) Information related to the construction or assembly of an explosive weapon or a chemical, biological, radiological or nuclear weapon of mass destruction or indicates the specific location of a chemical, biological agent, toxin or radioactive material that is more than likely to be used in the construction or assembly of such weapon or unpublished information relating to a potential vaccine or a device that detects biological agents or toxins. Id. at §418.178.
(f) Encryption codes and security keys for a public communication system if the information is collected for the purpose of preventing, detecting or investing an act of terrorism or related criminal activity. Id. at §418.179.
(g) Information, other than financial information, in possession of the city that is: (1) a part of a report to an agency of the United States; (2) relates to an act of terrorism or related criminal activity; and is specifically required to be kept confidential by federal law, an information sharing agreement or to obtain federal funding. Id. at §418.180.
(g) Information that identifies the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism is confidential. Id. at §418.181.
(h) Information, including access codes and passwords, that related to the specifications, operating procedures, or location of a security system used to protect public or private property from an act of terrorism or related criminal activity. Id. at §418.182.
In addition, the mayor may suspend the provisions of any regulatory ordinances if strict compliance with the provisions, orders or rules, would in any way prevent, hinder or delay necessary action in coping with a disaster. Id. at §418.016.
The governor may temporarily suspend or modify for a period of not more than 60 days any public health, safety, zoning or intrastate transportation, or other law or regulation if by proclamation the governor considers the suspension or modification essential to provide temporary housing or emergency shelter for disaster victims. See Tex. Government Code §418.020(c). Additionally, upon declaration of a state of disaster, enforcement of the regulation of on-premise outdoor signs by a city located in a county within or adjacent to a county within a disaster area specified by the declaration is suspended to allow certain insurance carriers or licensed agents to erect temporary claims service signage. See id. at §418.016(b). The signage may be erected for not more than 30 days or until the end of the disaster declaration, whichever is earlier, and must be removed at the end of this time period. Id. A temporary claims service sign shall: (1) be less than forty square feet in size; (2) be less than five feet in height; and (3) not be placed in the right of way. Id. at §418.016(c).
A city that experiences an emergency or an urgent public necessity may conduct a meeting without providing the 72-hour notice requirement that is generally required to conduct a meeting under the Open Meetings Act. An emergency or urgent public necessity exists only if immediate action is required because of: (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation. See Tex. Government Code §551.045(b). The sudden relocation of a large number of residents from the area of a declared disaster to a governmental body’s jurisdiction is considered to be a reasonably unforeseeable situation for a reasonable period immediately following the relocation. Id. at §551.045(e).
The city must post notice of an emergency meeting or an addition of an emergency item to an already existing agenda to a properly posted meeting at least two hours before the scheduled time of the meeting. Id. at 551.045(a). The notice must clearly identify the emergency or urgent public necessity justifying the emergency meeting. Id. at 551.045(c). The city must also provide notice of the emergency meeting or emergency item to members of certain members of the news media prior to the scheduled time of the meeting. Id. at §§551.045(e) and 551.047. If the emergency meeting is due to the sudden relocation of a large number of residents from the area of the declared disaster to the city, notice to the media must be provided not later than one hour before the meeting. Id. at §551.045(e).
A quorum is generally required at an emergency meeting before city council can conduct any city business. However, a quorum is not required if: (1) the city is wholly or partly located in the area of a disaster declared by the president of the United States or the governor; and (2) a majority of the members of city council are unable to be present at a meeting of city council as a result of the disaster. See Tex. Government Code §418.1101.
A city council may hold a meeting via telephone conference if an emergency or public necessity exists and it is impossible or difficult for a quorum of the city council to meet at one location. See Tex. Government Code §551.125(b). A notice of the meeting must be posted, specifying the location of the meeting as the same place where the meetings of the city council are usually held. Id. at §552.125(d). However, the notice need not specify that the meeting will be held by telephone conference. See Tex. Attorney Gen. Op. No. JC-352 (2001). The meeting must be set up to provide two-way communication during the entire meeting and the identity of each speaker must be clearly stated prior to the speaker speaking. Id. at §551.125(f). Additionally, all portions of the meeting, other than closed executive sessions, must be audible to the public at the location of the meeting, must be recorded, and the recording made available to the public. Id. at §551.125(e).
If a catastrophe prevents a city council from holding an otherwise properly posted meeting, the council may convene at a convenient location within 72 hours of the properly posted meeting if the action is taken in good faith and not done to circumvent the Open Meetings Act. See Tex. Government Code §551.0411(b). A catastrophe is defined as a condition or occurrence that interferes physically with the ability of a governmental body to conduct a meeting, including a fire, flood, earthquake, hurricane, tornado, wind, rain, snow storm, power failure, transportation failure, interruption of communication facilities, epidemic, riot, civil disturbance, enemy attack or other actual or threatened act of lawlessness or violence. Id. at §551.0411(c). If the city council is unable to convene the meeting within 72 hours, it may only subsequently convene the meeting if it provides 72-hour notice of the meeting. Id. at §551.0411(b).
Texas law contains no specific disaster-related exceptions from the general process of adopting city budgets and tax rates. However, a city may request the governor waive or suspend any budget and tax rate deadlines imposed by state law. See Tex. Government Code §418.016(e). The governor is authorized to waive or suspend such deadlines if the waiver or suspension is reasonably necessary to cope with a disaster. Id. If a local law, such as a charter requirement, ordinance or resolution, imposes a budget or tax rate adoption deadline on the city, the mayor may suspend such deadline if: (1) the city is wholly or partially located in an area declared as a disaster by the United States president or the governor; and (2) the mayor (or the governing body in the absence of a mayor) proclaims the city is unable to comply with the requirement because of the disaster. Id. at §418.1075(a). The deadline may not be suspended for more than 30 days after the date the mayor or the governing body, if applicable, makes the proclamation. Id. at §418.1075(b).
The mayor is authorized to declare a local state of disaster or request that the governor declare a state of emergency if a disaster has occurred or is imminent. See id at §§418.108(a) and 433.001. A declaration of a local disaster must be given general publicity and promptly filed with the city secretary. Id. at §418.108(c). The declaration of a local disaster activates applicable provisions of local or interjurisdictional emergency management plans and authorizes the furnishing of aid and assistance under the declaration. Id at 418.108(d). A disaster declaration lasts for no more than seven days unless continued by city council. Id. at §418.108(b).
The mayor may order the evacuation of all or part of the population from a stricken or threatened area within the city limits if the mayor believes it is necessary for the preservation of life or other disaster mitigation, response or recovery. Id. at §418.108(f). The mayor may compel persons who remain in the evacuated area to leave and authorize the use of reasonable force to remove persons from the area. Id. at §418.185(b). A person who knowingly disobeys a mandatory evacuation order, and who engages in or fails to take action a reasonable person would have taken that results in the undertaking of a governmental rescue effort is civilly liable to a governmental entity that conducts the rescue for the cost of the rescued. Id. at §418.185(d). The mayor is also authorized to control access to and from a disaster area under the mayor’s jurisdiction and control movement of persons and occupancy of premises in such area. Id at §418.108(g).
In a city located wholly or partially in an area of a disaster declared by the United States president or the governor, the mayor may proclaim the city’s inability to comply with a deadline imposed by local law, including a deadline relating to a budget or property tax because of a disaster. Id. §418.1075.
With respect to disease management, a city can take any action that is necessary to promote health and suppress disease, including quarantine, examining and regulating hospitals, regulating ingress and egress from the city, and fining those who do not comply with the city’s rules. See Tex. Health & Safety Code §§122.005 (Type A general law cities) and 122.006 (home rule cities).
The mayor serves as the governor’s designated agent in the administration and supervision of disaster management duties set out in state law. See Tex. Government Code §418.1015(b). On the local level, the mayor may exercise the same powers granted to the governor under Chapter 418 of the Government Code (the Texas Disaster Act). Id. Accordingly, the mayor may commandeer or use any private property if the mayor finds it necessary to cope with a disaster, subject to compensation requirements. Id. at §418.017(c). The mayor may also suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives, and combustibles. Id. at §418.019.
Texas law allows local government entities to provide emergency assistance to one another under mutual aid agreements or the Texas Statewide Mutual Aid System (the “system”). See Tex. Government Code §§418.107(c) and 791.027. A city may provide emergency assistance to another local government, whether or not the local governments have previously agreed to contract to provide that kind of assistance if: (1) in the opinion of the presiding officer of the requesting local government, a state or civil emergency exists in the local government that requires assistance and the presiding officer requests the assistance; and (2) before the emergency assistance is provided, the governing body of the local government providing the assistance authorizes that local government to provide assistance by resolution or other official action. See Tex. Government Code §791.027(a). A “local government entity” is a county, incorporated city, independent school district, public junior college district, emergency services district, other special district, joint board, or other entity defined as a political subdivision under Texas law that maintains the capability to provide mutual aid.” Tex. Government Code §418.004(10). “Mutual aid” refers to any activity related to the prevention or discovery of, response to, or recovery from a terrorist attack, a natural or manmade disaster, hostile military or paramilitary action, or extraordinary law enforcement emergency performed under the system or a written mutual aid agreement. See id. at§§418.004(11) and 421.001(3). If a request for mutual assistance is made to a city, the city manager or the highest ranking officer of the city, with the approval and consent of the mayor or the mayor’s designee, may provide the requested assistance in accordance with the polices, ordinances, and procedures established by the city’s governing body. See Tex. Government Code §418.115(b).
A city is expected to use its own resources and the resources available to it through mutual aid assistance before requesting assistance from the state. 37 TAC §7.23. A city may need to tap into reserve funds if appropriations for disaster preparation or recovery were not included in the city’s original budget. To add funds to the original budget, a city would need to amend its budget. State law allows a city to increase its budget only if there a “grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention...” Tex. Local Government Code §102.009(b) (note that under section 102.101 of the Local Government Code, a city may amend its budget at any time for city purposes, provided total budget expenditures under the budget are not increased). If the city amends its original budget to authorize an emergency expenditure, the city must file a copy of the order or resolution amending the budget with the city secretary, and attach such order or resolution to the original budget. Id. at §102.009(c). The amended budget must also be filed with the county clerk office. Id. at §102.009(d).
If local resources are exhausted and assistance is needed outside a mutual aid agreement, the mayor is authorized to request such resources from other political subdivisions or the state. See 37 TAC §§7.23 and 7.25. Before a city can request assistance from the state, a city must request assistance from the county where the city is located. See id. at §7.23. A request for recovery assistance must be in writing and must indicate that the disaster is of such magnitude that local resources are inadequate to deal with it and the affected locality cannot recover without state or federal assistance. Id. at §7.4. Additionally, the mayor must have declared a local state of disaster before she or he can request disaster recovery assistance from the state. Id. at §7.41. An estimate of the extent of damages sustained to public and private property including homes and business date on the number of people who are deceased, injured or displaces must be attached to the request for assistance along with a copy of the declaration of a local disaster. Id. at 7.43.
A city that participates in disaster preparation or disaster recovery is eligible for funding from the state disaster contingency fund to pay for costs incurred by the city in preparing for and recovering from a disaster. Tex. Government Code §418.073(c). A city that receives funding from the disaster contingency fund to pay for costs associated with disaster recovery and that subsequently receives reimbursement from the federal government, an insurer, or another source shall reimburse the disaster contingency fund. Id. at §418.073(f). A city that is experiencing financial hardship as a result of a disaster may also use funds provided to the city from the disaster contingency fund for purposes of providing local matching funds for FEMA qualifying projects. Id. 418.073(h).
The answer depends on whether the employee is an exempt employee or nonexempt employee under the Fair Labor Standards Act (FLSA). Generally, a city is not required to pay nonexempt employees if the city is closed, even if such employees would normally be scheduled to work. See 29 C.F.R. § As a result, whether the city is closed for part of a day, part of a week, or a full week or more, the FLSA does not require the city to pay these employees for time they did not work. However, in instances where a nonexempt employee receives a fixed salary for fluctuating workhours (e.g. an employee who has agreed to work an unspecified number of hours for a specified salary), the city must pay such employee his or her full weekly salary for any week in which any work was performed. See 29 C.F.R. §778.306.
The city is required to pay an exempt employee his or her full salary if the employee works any part of a workweek in which the city is closed or cannot be reopened due to inclement weather or disaster for less than a workweek. See 29 C.F.R. §541.602. For example, if the city is closed for only part of a week, and the exempt employee worked during that any part of that week, the city must a city is required to pay an exempt employee the employee’s full salary if the employee’s worksite is closed or cannot be reopened due to inclement weather or disaster for less than a full workweek. 29 C.F.R. §541.602. If the city is closed for a full workweek and an exempt employee performs no work during that workweek, the city is not required to pay the exempt employee. See 29 C.F.R. §541.602.
Texas law prohibits an employer from discharging or discriminating against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order or a local disaster declaration. See Tex. Lab. Code §22.002. An employer who violates this provision is liable for any loss of wages and employer-provided benefits incurred by the employee as a result of the violation. Id. at §22.003. However, this provision does not apply to emergency services personnel, including fire fighters, police officers, emergency medical technicians, and other individuals who are required to provide services for the benefit of the general public in emergency situations, provided that adequate emergency shelter is provided for such individuals. Id. at §22.004.
Generally, a city must competitively procure goods or services that require an expenditure of more than $50,000. See Tex. Local Government Code §252.021(a). However, state law allows a city to procure goods or services without following a competitive procurement process if: (1) the procurement is made because of a public calamity that requires the immediate appropriation of money to relieve the necessity of the city’s residents or to preserve the property of the city; (2) the procurement is necessary to preserve or protect the public health or safety or the city’s residents; or (3) the procurement is necessary because of unforeseen damage to public machinery, equipment or other property. Id. at §252.022(a)(1)-(3).
Although Section 252.022 relieves the city from complying with the regular competitive procurement process, it does not exempt the city from complying with the requirements related to performance and payment bonds. Performance bonds are required for construction projects that exceed $100,000, and payment bonds are required for construction projects that exceed $50,000. See Tex. Government Code §2253.021.
To be eligible for reimbursement, purchases made by a city must comply with federal procurement laws. Although a city may procure goods and services, under state law, without competitive bidding as an emergency, such exception does not necessarily result in compliance with federal procurement rules. Federal law may be more stringent than state law with respect to procurement and emergency exceptions. The Federal Emergency Management Agency’s (FEMA) Procurement Disaster Assistance Team (PDAT) provides assistance with adhering to federal procurement standards and FEMA policies and guidance associated with FEMA’s Public Assistance grants. If a city plans on filing a reimbursement claim with FEMA, the city should work with FEMA and its city attorney to competitively procure goods and services in accordance with federal regulations to reduce the likelihood of disallowance of such claim.
*If records are maintained electronically, hopefully backups can be brought online and computer equipment can be salvaged or replaced quickly. In the case of physical records, it is essential to examine the condition of offices, warehouses, and other locations where records are stored as soon as possible. Unfortunately, some physical records just aren’t going to be salvageable or will be too costly to send to a conservation lab for restoration. For some ideas on how to begin triaging records, the Texas State Library and Archives Commission (TSLAC) has a webinar with some suggestions. In cases where the records cannot be recovered, city officials need to document the types of records affected, the volume of records lost, and when the records were due for destruction. For non-permanent records, this internal documentation is sufficient. But for any permanent records, TSLAC will need to be notified. City officials should submit an SLR 501: Request for Authority to Destroy Unscheduled Records (PDF) to TSLAC. It is helpful to TSLAC if the city can include photos, a letter describing the circumstances that lead to the damage, or any other evidence that supports the information you will provide on the form.
Now, the INTENDED use for these forms is either to obtain permission and legal authority to destroy unique records that do not appear on a local government’s approved retention schedule, which otherwise would be permanent OR to request permission from TSLAC to destroy the paper original of a record a local government wants to microfilm.
That being said, if permanent records are damaged/rendered unsalvageable from conditions beyond your control, submit this form to TSLAC in order to officially document and note the event, any pertinent details, and number/ type of records that were destroyed.
This does not absolve you of legal responsibility for following the retention period set by your schedules; it just provides evidence about the nature of the records’ destruction. By doing this in the normal course of business, it shows that information was not intentionally withheld or destroyed.
If you have any questions about our forms or the process, please contact TSLAC at 512-463-7610 or by email.
*Via, the Texas Record (Sep. 6, 2017)
The Texas Municipal League (TML) Career Center benefits both employers and job seekers with easy navigation, instant access to job postings, and complete and timely information. The TML Career Center is the number one destination on the TML website. Frequently, the TML Career Center produces better results than local newspapers for both employers and job seekers.
The number of visits average around 340,000 a month as well as 1,700 active jobs per day.
Job openings are posted immediately, and each employer has the ability to track each job posting. Once your job has been posted, you can make edits as needed, see how many times it has been viewed, or even close the job. Past job openings are archived, so they can be reused if you need to re-post a position. Contact the Career Center for more information.
The Texas Municipal League Career Center allows you to create a profile that can include multiple resumes, which you are then able to submit electronically. When searching for a job, you can identify the location where you would like to work, select from numerous job categories, and input keywords to specify the type of opportunity you are seeking. You also have the option to browse all jobs and/or browse jobs by a particular employer. Contact the Career Center for more information.
Any Texas Municipal League member city may post a job opportunity at no charge. Private sector companies may post job opportunities at a cost of $100 per 30 days if they are a member of TML. For non-members, the cost is $200 per 30 days. Texas Municipal League reserves the right to screen all submissions and deny any considered inappropriate. Contact the Career Center for more information.
You have direct access to your posting. You will need to log in and go to My Jobs. To make changes, click on Action/Edit. To cancel, click on Stop (this allows the job to be available for future postings). Contact the Career Center for more information.
Contact the Career Center for more information.
You can ask for help by emailing the Career Center or by calling 512-231-7400.